IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
STATE OF OHIO ex rel. BRIAN M. AMES,
Relator-Appellant/ Cross-Appellee,
- vs -
PORTAGE COUNTY BOARD OF COMMISSIONERS,
Respondent-Appellee/ Cross-Appellant. CASE NO. 2023-P-0082
Civil Appeal from the Court of Common Pleas
Trial Court No. 2019 CV 00878
O P I N I O N
Decided: May 13, 2024 Judgment: Affirmed
Brian M. Ames, pro se, 2632 Ranfield Road, Mogadore, OH 44260 (Relator- Appellant/Cross-Appellee).
Victor V. Vigluicci, Portage County Prosecutor, and Christopher J. Meduri, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent- Appellee/Cross-Appellant).
MARY JANE TRAPP, J.
{¶1} Relator-appellant/cross- January 27, 2022, judgment of the Portage County Court of Common Pleas denying his
motion for summary judgment on his 39-count complaint against respondent-
appellee/cross-appellant, bench trial. {¶2} The board cross- finding in favor of Mr. Ames on 20 counts.
{¶3} Mr. Ames asserts four assignments of error, contending the trial court erred
by denying his motion for summary judgment and by granting partial judgment to the
board after trial. The board raises two cross-assignments of error, contending the trial
court erred by granting partial judgment to Mr. Ames after trial.
{¶4} After a careful review of the record and pertinent law, we find as follows:
{¶5} judgment was rendered moot or harmless. Mr. Ames did not face an adverse judgment
of law.
{¶6} (2) The trial court did not err by granting judgment to the board on Mr.
121.22(F). Mr. Ames presented no evidence at trial showing the unreasonableness of
{¶7} (3) The trial court did not err by granting judgment to the board on count 31
to state a permitted purpose under R.C. 121.22(G)(1). Mr. Ames presented no evidence
at trial showing that the board did not discuss all the topics stated in its motion, and the
board was not legally required to discuss every topic. {¶8} (4) The trial court did not err by granting judgment to Mr. Ames on his 20
expressly included reasons for holding executive sessions that are not statutorily
permitted.
{¶9} (5) The trial court did not err by granting judgment to the board on Mr.
did not render the minutes inaccurate.
{¶10} -assignments
of error are without merit, and we affirm the judgments of the Portage County Court of
Common Pleas.
Substantive and Procedural History
{¶11} The board is a board of county commissioners established under R.C.
305.01. Mr. Ames is a resident of Randolph Township in Portage County.
{¶12} In November 2019, Mr. Ames, pro se, filed a 39- se follows:
In count 1, Mr. Ames alleged the board violated R.C. 121.22(F) by failing to
establish, by rule, a reasonable method whereby any person may determine the time, In 21 counts (counts 2, 4, 6, 8, 10, 11, 13, 15, 17, 19, 21, 23, 25, 26, 27, 29,
31, 33, 34, 36, and 38), Mr. Ames alleged the board violated R.C. 121.22(A) and (G) by
holding executive sessions for purposes that are not permitted under R.C. 121.22(G)(1)
(
In 17 counts (counts 3, 5, 7, 9, 12, 14, 16, 18, 20, 22, 24, 28, 30, 32, 35, 37,
and 39), Mr. Ames alleged the board violated R.C. 121.22 by failing to keep full and
{¶13} Mr. Ames requested findings that the board committed 39 violations of R.C.
a civil forfeiture of $500 for each injunction issued; a declaration that all formal actions
resulting from the allegedly improper executive sessions are invalid; an order requiring
the board to establish a rule pursuant to R.C. 121.22(F); an order requiring the board to
correct its meeting minutes; and an award of court costs and reasonable attorney fees.
{¶14} The board filed an answer admitting some factual assertions but denied that
its actions violated R.C. 121.22. Following discovery, Mr. Ames moved for summary
judgment on all counts, which the board opposed. 1 On January 27, 2022, the trial court
appealed, which this court dismissed sua sponte for lack of a final appealable order in
State ex rel. Ames v. Portage Cty. Bd. of Commrs., 11th Dist. Portage No. 2022-P-0013,
2022-Ohio-1141.
1. While his motion was pending, Mr. Ames filed a petition for a writ of procedendo in this court, alleging the trial court had unjustifiably delayed entering final judgment in the underlying case. This court granted State ex rel. Ames v. Pokorny, 11th Dist. Portage No. 2022-P-0007, 2022-Ohio-1102. Mr. Ames also filed an affidavit in the Supreme Court of Ohio to disqualify the visiting judge from the underlying case and several others. The visiting judge recused affidavit as moot. The Chief Justice subsequently assigned a new visiting judge. {¶15} The trial court set the matter for a bench trial and filed several pretrial orders,
board and prohibiting the board from disputing them. Both parties filed trial briefs.
{¶16} The matter was tried to the bench on October 5, 2023. The trial court
separated the 39 counts into three groups for purposes of disposition: (1) the notice rule
claim; (2) the executive sessions claims, and (3) the meeting minutes claims. For the
notice rules for 2018 and 2019. For the executive session and meeting minutes claims, Mr.
pretrial order. Neither party presented any other exhibits or witness testimony.
{¶17} On October 10, 2023, the trial court filed a judgment entry granting partial
judgment to both parties. Specifically, the trial court granted judgment to the board on
the notice rule claim, one executive sessions claim (count 31), and the 17 meeting
minutes claims. The trial court granted judgment to Mr. Ames on his 20 additional
executive sessions claims. The trial court issued an injunction against the board and
ordered it to pay a $500 civil forfeiture.
{¶18} Mr. Ames appealed and raises four assignments of error:
{¶19} for Summary Judgment.
{¶20}
{¶21} {¶22}
{¶23} The board cross-appealed and raises two cross-assignments of error:
{¶24} erred as a matter of law in holding the board
violated the Open Meetings Act.
{¶25} were improperly held when the motions stated a matter permiss[i]ble under R.C.
121.22(G)(1) and the matters considered during the executive sessions were
permiss[i]ble under R.C. 121[.]22(G)(1) and there was no allegation nor evidence
Summary Judgment
{¶26} In his first assignment of error, Mr. Ames contends the trial court erred by
denying his motion for summary judgment.
{¶27} We review summary judgment decisions de novo. Hedrick v. Szep, 11th
Dist. Geauga No. 2020-G-0272, 2021-Ohio-1851, ¶ 13. Summary judgment is
appropriate only when (1) no genuine issue as to any material fact remains to be litigated,
(2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the
evidence that reasonable minds can come to but one conclusion, and viewing the
evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the
nonmoving party. Civ.R. 56(C).
{¶28} has been rendered in a case * * *. While any error in the denial of a motion for summary judgment will often be rendered moot or harmless when the trial proceedings show that
there were genuine issues of material fact supporting a judgment in favor of the party
against whom the motion for summary judgment was made, * * * the denial of a motion
for summary judgment is not harmless when the denial was predicated on a pure question
of law, see Continental Ins. Co. v. Whittington, 71 Ohio St.3d 150, 158, 642 N.E.2d 615
Bliss v. Johns Manville, 172 Ohio St.3d 367, 2022-Ohio-4366, 224 N.E.3d 22, ¶
14.
{¶29} Here, the trial court rendered favorable judgments to Mr. Ames on all but
one of his executive sessions court determined t not that he incorrectly stated the applicable law. Accordingly, any error in the
{¶30}
Bench Trial
{¶31} -
Therefore, we review them collectively.
{¶32} Ultimate Salon & Spa, Inc. v. Legends
Constr. Group, 2019-Ohio- court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in
the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage
State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). upported by some
competent, credible evidence going to all the essential elements of the case will not be
C.E.
Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.
{¶33} Ultimate
Salon at ¶ 30. De novo review generally means the appellate court independently reviews
In re Placement of
A.R.V., 2016-Ohio-4929, 68 N.E.3d 410, ¶ 12 (11th Dist.).
Notice Rule Claim
{¶34} In his second assignment of error, Mr. Ames contends that the trial court
erred by granting judgment to the board on his notice rule claim.
{¶35} This claim is based on R.C. 121.22(F), which provides, in relevant part:
{¶36} a reasonable method whereby
any person may determine the time and place of all regularly scheduled meetings and the
time, place, and purpose of all special meetings. * * * The rule shall provide that any
person, upon request and payment of a reasonable fee, may obtain reasonable advance
notification of all meetings at which any specific type of public business is to be discussed.
Provisions for advance notification may include, but are not limited to, mailing the agenda of meetings to all subscribers on a mailing list or mailing notices in self-addressed,
{¶37} posted on the first- and seventh-floor bulletin boards in the county administration building
bulletin boards are not visible when the building is closed.
{¶38} Ohio Revised Code Section 121.22(D2) [sic] and (G)(1)- of state or independent certified public accountants with officials of the public office that
{¶39} herein, may obtain reasonable advance notification of all meetings at which any specific
item appears on the agenda. Each person shall file, with the Clerk, a written request
speci with the specific type of public business that is of interest, and the amount of time this
request covers (not to exceed three months) Mr.
Ames, R.C. 121.22(F) does not permit the board to impose a three-month limitation on a
request for advance notification.
{¶40} reasonable reasonable question of fact to be resolved by the trier of fact. Coleman v. Kindercare Learning Ctr., Inc., 10th Dist. Franklin No. 99AP-259, 1999 WL 1267321, *3 (Dec. 30, 1999).
{¶41} authorizing citizens to sue public bodies for violations of the OMA [R.C. 121.22(I)(1)]
clearly places the burden of proof, or at least the burden of persuasion, on the plaintiff. *
* * Therefore, to receive relief, the plaintiff must prove a violation of the OMA. There is
State
ex rel. Hicks v. Clermont Cty. Bd. of Commrs., 171 Ohio St.3d 593, 2022-Ohio-4237, 219
N.E.3d 894, ¶ 11.
{¶42} Mr. Ames presented no evidence at trial to show that the above issues
evidence.
{¶43} On appeal, Mr. Ames cites Specht v. Finnegan, 149 Ohio App.3d 201, 2002-
Ohio- Specht in his
trial brief or at trial; thus, the trial court had no occasion to consider it. Specht also does
the doors to a building in which a public meeting is being held negates the public character
Id Id. at ¶ 34-35. Thus,
Specht is inapposite. {¶44} Accordingly, the trial court did not err by granting judgment to the board on
Executive Sessions Claims
{¶45} In his third assignment of error, Mr. Ames contends that the trial court erred
by granting judgment to the board on his executive session claim in count 31. In their two
cross-assignments of error, the board contends that the trial court erred by granting
judgment to Mr. Ames on his 20 additional executive sessions claims.
{¶46} Hicks members of a public body may hold an executive session [1] only after a majority of a
quorum of the public body determines, by a roll call vote, to hold an executive session
and [2] only at a regular or special meeting [3] for the sole purpose of the consideration
Id., quoting R.C. 121.22(G).
{¶47} consider [1] the appointment, employment, dismissal, discipline, promotion, demotion, or
compensation of a public employee or official, or [2] the investigation of charges or
complaints against a public employee, official, licensee, or regulated individual, unless
ssion pursuant
to division (G)(1) of this section, the motion and vote to hold that executive session shall
state which one or more of the approved purposes listed in division (G)(1) of this section are the purposes for which the executive session is to be held, but need not include the
Count 31
{¶48} consider the appointment, employment, dismissal, discipline, promotion, demotion, or
compensation of a public employee or official, or the investigation of charges or
complaints against
State ex rel. Ames v. Portage Cty. Bd. of
Commrs., 2019-Ohio-3729, 144 N.E.3d 1010 (11th Dist.), and State ex rel. Ames v.
Portage Cty. Bd. of Commrs., 2019-Ohio-3730, 132 N.E.3d 729 (11th Dist.), colloquially
decision in Hicks is the controlling precedent.
{¶49} In Hicks, a public body convened executive sessions on motions to consider
Id. at ¶ 3. The
relator filed a complaint alleging that the public body violated the OMA by repeatedly
rather than identifying the specific issues it intended to discuss. Id. at ¶ 2.
{¶50}
body must discuss every single topic that it includes in its motion to enter executive
Id Id. Id body might not know before it enters executive session exactly what will be discussed
Id motion that includes all the topics it might reasonably discuss during an executive
Id. at ¶ 36.
{¶51} officers, administrative officers, and public boards acting within their official capacities or
Id. evidence to the contrary, courts should presume that a public body in executive session
discussed the topics stated in its motion to enter executive session and did not discuss
any matters not stated in the motion. * * * It is the plaintiff Id all the topics included in its motion to enter executive session, and because there is no
was not
entitled to summary judgment. Id. at ¶ 37.
{¶52} Here, as in Hicks, Mr. Ames presented no evidence at trial showing that the
board did not discuss all the topics stated in its motion, and the board was not legally
required to discuss every topic. See id. at ¶ 37. Therefore, Mr. Ames did not meet his
burden of proving the violation alleged in count 31. See id. at ¶ 24.
{¶53} consider the compensation of a licensee or regulated individual admission did not provide evidentiary support for the violation alleged in count 31.
{¶54} ial
{¶55} Accordingly, the trial court did not err by granting judgment to the board on
Additional Counts
{¶56} or
consideration were appointment (two counts), compensation (seven counts), dismissal
(four counts), employment (two counts) employment and dismissal (one count),
compensation and dismissal (one count), employment and compensation (one count),
discipline and dismissal (one count), and employment, dismissal, promotion, demotion
(one count). {¶57} For example, counts 10 and 11 involved the board moving to hold executive
licensee, or regulated
individual
nvestigation
an approved purpose and an unapproved one, the motion is based upon an unapproved
121.22(C) that all public meetings be open unless an express exception under the statute
{¶58} division (G)(1) of this section, the motion and vote to hold that executive session shall
state which one or more of the approved purposes listed in division (G)(1) of this section
st contain the
statutory reason Hicks at ¶ 32; see
Jones v. Brookfield Twp. Trustees, 11th Dist. Trumbull No. 92-T-4692, 1995 WL 411842,
executive session must refer to one of the purposes stated in the division itself (Emphasis added.) Implicit in this requirement is a prohibition against stating a non- statutory reason.
{¶59} Jones State ex rel. Ames v. Brimfield Twp. Bd. of Trustees, 2019-Ohio-4926, 149
circumvented absent the filing of a lawsuit to discover the reasoning for entering an
Id.
{¶60} The Supreme Court of Ohio and this court have treated violations of R.C.
121.22(G)(1) as independent OMA violations. For instance, in State ex rel. Long v.
Cardington Village Council reflect[ed] that respondents often failed to specify the appropriate statutory purpose or
purposes Id. at
specified statutory purposes,
Id.
{¶61} In Jones not technically satisfy [the R.C. 121.22(G)(1)] requirement because it does not specify
which of the approved purposes (Emphasis added.) Id. at *3.
{¶62} In Bode v. Concord Twp., 2019-Ohio-5062, 137 N.E.3d 1245 (11th Dist.),
this court found that a township board of trustees violated R.C. 121.22(G)(1) because its
minutes did not state any reasons for entering executive sessions. Id. at ¶ 101. {¶63} foregoing pr
{¶64} Hicks does not require a contrary
conclusion. That case involved a public body identifying multiple statutory reasons in its
motions to hold executive sessions. See id. at ¶ 2. Unlike here, there was no allegation
that the public body identified non-statutory reasons in its motions.
{¶65} Further, in Hicks, the presumption of regularity attached, presumably
121.22(G)(1). See id. a public body goes into executive session for a permitted reason under R.C. 121.22(G)(1),
it is presumed of reg the faces of its motions.
{¶66} violations. prejudice to the party that sought the injunction shall be conclusively and irrebuttably {¶67} The board also notes that there is no allegation that it actually considered
any impermissible matters during its executive sessions. This may have been a relevant
nvolve
-statutory purposes in its motions to hold executive sessions
in violation of R.C. 121.22(G)(1).
{¶68} Accordingly, the trial court did not err by granting judgment to Mr. Ames on
-
assignments of error are without merit.
Meeting Minutes Claims
{¶69} Finally, in his fourth assignment of error, Mr. Ames contends that the trial
court erred by granting judgment to the board on his meeting minutes claims.
{¶70} R.C. 121.22(C) requires a public body to prepare, file, and maintain minutes
of its meetings. Long, 92 Ohio St.3d at 56, 748 N.E.2d 58. The Supreme Court of Ohio
sufficient facts and information to
permit the public to understand and appreciate the rationale behind the relevant public
decision State ex rel. White v. Clinton Cty. Bd. of Commrs.,
reflect the
general subject matter of discussions in executive sessions authorized under division (G)
{¶71} under White White Hicks public body is required to record in its executive-session minutes is the statutorily permitted reason Id. at ¶ 17. Here, the
board stated specific reasons for holding executive sessions. The problem is the board
es inaccurate.
{¶72} Accordingly, the trial court did not err by granting judgment to the board on
{¶73} For the foregoing reasons, the judgments of the Portage County Court of
Common Pleas are affirmed.
EUGENE A. LUCCI, P.J.,
JOHN J. EKLUND, J.,
concur.
